Mary A. Williams Walker v. Lewis E. Walker

Opinion issued January 3, 2013

In The

Court of Appeals
For The

First District of Texas
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NO. 01-11-00232-CV
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MARY A. WILLIAMS WALKER, Appellant
V.
LEWIS E. WALKER, Appellee

On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 0672877

MEMORANDUM OPINION

Appellant Mary A. Williams Walker attempts to appeal from the trial court’s

“Final Decree of Divorce,” signed December 3, 2010. Because appellant’s notice

of appeal was not timely filed, we dismiss the appeal for lack of jurisdiction.
 Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is

extended to 90 days after the date the judgment is signed if any party timely files a

motion for new trial, motion to modify the judgment, motion to reinstate, or, under

certain circumstances, a request for findings of fact and conclusions of law. See

TEX. R. APP. P. 26.1(a)(1). To be considered timely, a motion for new trial must be

filed within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a).

For the purpose of ascertaining our jurisdiction, we requested a clerk’s

record containing the trial court’s final judgment, any post-judgment motions, and

the notice of appeal. The district clerk filed a record in response, which reflects

that the trial court signed the final decree on December 3, 2010 and that appellant

filed her notice of appeal 101 days later, on March 14, 2011. As such, appellant’s

notice of appeal was not timely filed. See TEX. R. APP. P. 26.1.

The clerk’s record does not contain a motion for new trial, and the trial

court’s records do not reflect that a motion for new trial was filed; however, we

note that the assignment letter reflects that a motion for new trial was filed on

December 30, 2010. Further, the records of the court below reflect that the trial

court signed an order denying appellant’s motion for new trial on February 18,

2011.

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 Even if we conclude that appellant timely filed a motion for new trial,

however, appellant’s notice of appeal was not timely filed. Appellant’s notice of

appeal would have been due 90 days after the trial court signed the final decree, or

March 3, 2011. See TEX. R. APP. P. 26.1(a)(1). Appellant did not file her notice of

appeal until 11 days after the deadline, on March 14, 2011.

We may extend the time to file the notice of appeal if, within 15 days after

the deadline to file the notice of appeal, the party files a motion for extension. See

TEX. R. APP. P. 10.5(b), 26.3. Appellant did not file a motion for extension.

A motion for extension is necessarily implied when an appellant, acting in

good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within

the 15-day extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3;

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The appellant must,

however, offer a reasonable explanation for failing to file the notice of appeal in a

timely manner. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston,

976 S.W.2d 676, 677 (Tex. 1998).

Appellant filed her notice of appeal beyond the time allowed by Rule 26.1,

but within the 15-day extension period provided by Rule 26.3. See TEX. R. APP. P.

26.1, 26.3. As such, we imply a motion for extension of time. See Verburgt, 959

S.W.2d at 617. Appellant did not, however, offer an explanation for failing to

timely file the notice of appeal, which is required. See Jones, 976 S.W.2d at 677.

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 On December 8, 2011, we notified appellant that, unless she filed a response

demonstrating our jurisdiction, the appeal may be dismissed. See TEX. R. APP. P.

42.3(a). Appellant did not respond. On July 3, 2012, we notified appellant that,

unless she filed a reasonable explanation for the untimely filing of her notice of

appeal, the appeal may be dismissed for want of jurisdiction. See id. Again,

appellant did not respond.

Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any

pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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